INDEMNITY IN CASE OF WAR

II.171.1

INDEMNITY IN CASE OF WAR. When a war has desolated a country, leaving destruction and ruin behind it, is there reason for an equalization of the burden of material damage (more or less approximate)? This question would be rarely presented if a country were invaded throughout its entire territory, and all its provinces suffered almost equally; but when only one part of a country has been occupied, while the rest has not seen the enemy, the question of compensation, of a general sharing in the whole amount of damages, naturally arises, and the provinces visited by the scourge present their claims. Claims are made even in districts where all the inhabitants have not suffered equally. Are these claims well founded? Is there cause for compensation, for indemnity, for equalization of damages? We shall examine this briefly.

II.171.2

—The question of indemnity in case of war is much more complicated than might be supposed. In the first place, damages inflicted by the national army must be distinguished from those caused by the enemy. The acts attributed to the military authority of the country may have taken place during peace; in that case there is reason for an indemnity, regulated in France, for instance, according to the law of eminent domain (May 3, 1841). In time of war, when the enemy is still at a certain distance and preparations are made to meet him, the decree of Aug. 10, 1853, article 38, admits rather a limited right to indemnity. But in article 39 of the same decree we read the following: "No occupation, no deprivation of use, no demolition or other damage resulting from an act of war, and from a measure of defense taken either by a military authority, during the state of siege, or by an army corps or detachment, in presence of the enemy, gives a right to indemnity." This provision does not exist in the decree of July 8, 1791, (as to which see articles 35 to 38.)

II.171.3

—What is to be understood by an act of war? The law does not define it, but jurisprudence has determined certain cases, the most prominent of which we shall cite. The following have been declared acts of war giving no right to indemnity: the cutting of timber at the order of the commander in-chief to cover the retreat of troops manœuvering in presence of the enemy (council of state, March 26, 1823, Bellamy); the removal of timber by hostile troops, for the use of these troops, by order of the mayors, to satisfy the requisitions of the enemy (Nov. 16, 1825, Schoengrun); the destruction of a house caused by the explosion of a powder magazine by order of French authority in presence of the enemy (March 15, 1826, Daisy). This has always been the rule in France, and in this regard the chief of the executive power was right in appealing to it when he maintained in the discussion of the law, Sept. 6, 1871, that in principle no indemnity was (legally) due French citizens who had suffered from damages inflicted by the invasion, and that at most only assistance was due them.

II.171.4

—In the same discussion (session of Aug. 5, 1871, Journal Officiel of Aug. 6.) Thiers maintained a different doctrine in relation to damage caused the inhabitants of Paris by the bombardment of May, 1871, during the insurrection of the commune. "And as to those quarters of Paris," said he, "of which you have just spoken, and concerning which you have said that we wish to do nothing for the cottages, while we are about to rebuild the mansions of the wealthy, in the part of the city which we have attacked. Gentlemen, you have not seen those quarters which you describe so strangely. Where is the mansion of the wealthy? Look for it in those quarters ruined by the bombs and bullets, not of the enemy, but of our own army, of France, of the national right, which strove at all cost to re-establish order, indispensable to the very life of the nation. And do you know what principle created the right in this case? The principle that when a government commits an act intentionally, with a definite will, not by chance, but after reflection, it owes a complete indemnity for the damage which it causes. Read our laws, study the principles of public justice, and you will see this is the distinction always made. "The state never indemnifies for the chances of war, it only indemnifies for voluntary, intentional, foreseen damages of which it is the author"*25

II.171.5

—We do not know whether jurisprudence is always in accord with the second half of the proposition which we have just cited, but we find it (this second half) excellent; it is not for us to discover whether any one can hold a contrary opinion. Therefore we consider it as established, that acts originating with a national army, damages caused by the order, and in the interests of a country, should be repaired by that country.*26 We may mention here for a similar reason the law of 10 Vendémiaire, year IV. (Oct. 2, 1795), which makes the French communes responsible in case of riots, etc., and obliges them to indemnify sufferers.

II.171.6

—We come now to the cases in which damage was caused by the enemy. In the decisions of the council of state cited above, and the complete sketch of which is before us, no law was quoted; the decision was founded on simple reasoning, or rather on the simple assertion, nothing is due for acts of war. Still there is a law of Aug. 11, 1792, (see Journal Officiel, 1871, pages 2457 and 2459), and another of 1793 (Aug. 14 and 16), which declare "in the name of the nation that it will indemnify all citizens for all losses which they have sustained, or may sustain in consequence of the invasion of the enemy." Later, in 1816, a sum of one hundred millions was in like manner granted to the invaded departments. But whatever the previous jurisprudence, and even legislation, since the law of Sept. 6, 1871, the principle of indemnity is—if not completely, at least partially—adopted, in France, by article 1, which we here quote: "Compensation will be accorded to all who have been subjected during the invasion to contributions of war, requisitions, either in money or kind, fines and material damages." The word compensation is the result of a compromise. The government wished to grant only aid, "relief," without recognizing a right: the deputies demanded an indemnity: the term chosen seemed vague enough to satisfy both parties, but in reality the word compensation is a synonym of indemnity, and has nothing in common with aid. The French law of April 7, 1873, is to the same effect, and the principle of national solidarity may be considered established.*27 The following, among others, are the terms employed by Casimir Périer: "I admit also, and I go further, I maintain that it is out of the question to impose the special burden of military contributions and military requisitions in money levied by the enemy, on the invaded departments, on the departments which bore them in addition to all the other misery which they suffered." And further, "I maintain that these are facts affecting the whole nation, and it is impossible to avoid distributing the burden of them over all the national territory." Let us add that Bouffet, rejecting the word aid, said, "The reparation which the invaded departments demand is the reparation of a damage of which the whole state is the cause and for which the whole state is responsible."

II.171.7

—There is scarcely any other country except Germany in which the question is important. It can have no importance in England, which is protected against invasion by the waters which wash its shores, and when necessary by its "wooden walls" Germany, on the contrary, has long been the battle ground of European passions, therefore the doctrine of indemnification prevailed there at an early period. We have before us a work published in 1798, at Wurzburg, with the title: Weber (councilor, etc.), Ueber die Repartition der Kriegsschaden. (On the distribution of the burden—of damages caused by war—on the entire nation.) This work cites and discusses a great number of earlier publications, and, like the majority of previous authors, concludes in favor of indemnity, resting on the argument of national solidarity. We regret that we can not make numerous extracts from this very interesting work, in which questions are discussed from a legal point of view, and texts or precedents are freely used in their support. Among the different opinions examined is that also which considers acts of war as acts of chance, cases of hazard or superior force, cases which among others the French code declared as not justifying indemnity. (See Civil Code, article 1148, and many others.) But Weber does not admit this argument. Chance, if there is any, consists in this, that one district was visited rather than another, or that such a house or such a field was damaged rather than another, but the fact itself of damage has nothing fortuitous in it. The state desired or allowed the war, and as the damage is the natural or inevitable result thereof, there is nothing unforeseen in it. The states are at war, and it is for them to bear the consequences, and not individuals who are unable to do so. We shall add that if the conflagration caused by lightning, the destruction produced by an earthquake, the ravages occasioned by a flood, are examples of superior force, giving no chance of indemnity, it is because the lightning, the earthquake and the flood are not personalities that may be called to account. But let a cannon ball throw down my garden wall, let a locomotive in running off the track cause me damage, and I shall find some person to summon before the tribunals.

II.171.8

—Weber next discusses the law Aquilia (Roman law), according to which a damage which I cause in the interests of my own legitimate defense does not make me responsible. Thus, if I destroy my neighbor's house during a fire to keep my own from burning, I am within my rights. In like manner the state may demolish your house, fell your forest, cut up your field, if this is necessary for state defense. But, says Weber (omitting the objections which the principle raises in itself), the law Aquilia, which is private law, does not apply to the case in point: it is not a question of law among individuals, but a burden imposed by the state in the interest of all.

II.171.9

—There is also the law Rhodia This law is found in the French Code of Commerce, article 400, and elsewhere; it declares as a common duty the reparation of all damage happening to a vessel, and more especially the indemnity to be paid to the owner of the merchandise thrown overboard to lighten the ship in danger. The owner of the merchandise bears his part, but the others bear theirs also. The principle is beyond attack, but its formula is perhaps not happy when applied to war. But we are not obliged to stop here, since we have clearer and more applicable modern formulæ. It only remains, in summing up, to cite some of the most recent cases of indemnities, granted to invaded provinces.

II.171.10

—In 1866, immediately after the conclusion of peace, the Austrian ministry named (Aug. 3) a commission entrusted with investigating the damages in order to discover their total amount. The word employed is Schaden-Ersatz, compensation or indemnity. Still a complete indemnity was not granted. Saxony, by vote of Jan. 17, 1867, seems to have been more generous. In 1871, the German law of June 14 indemnified completely the inhabitants of Alsace-Lorraine. (See the law in the French journals of the last days of June, 1871.) At the same date, June 14, 1871, a commission was appointed at Berlin to fix the indemnity due German shipowners, in consequence of war. In fine, modern law is in favor of indemnity, without, however, imposing on the nation the payment of the whole damage; for the person injured must also bear his share, since he too is a part of the nation.

MAURICE BLOCK.

Notes for this chapter

Vattel, book iii., chap. xv., § 232, asks no more than this. He is satisfied with aid since it seems impossible to him to indemnify every one for the damages caused by the chances of war. Grotius, book iii., chap. xx., § 8, recognized the solidarity of the nation.

The "Times," of Aug. 9, 1871, in giving an account of the above discussion, in a leader, treats the doctrine of national solidarity with reference to acts of war (first part of proposition) as extravagant theories, and recalls the fact that, in a similar case, Cavour held analogous language, in 1859, which was approved by the parliament of Turin. For our own part, we can not admit recruiting by lot, and many other institutions which impose sacrifices on some citizens for the advantage of all, unless we rest on the principles of solidarity.

End of Notes

The cuneiform inscription in the Liberty Fund logo is the earliest-known written appearance of the word "freedom" (amagi), or "liberty." It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.